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[Federal Register Volume 78, Number 25 (Wednesday, February 6, 2013)]
[Rules and Regulations]
[Pages 8407-8409]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-02392]

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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OPP-2011-0104; FRL-9363-1]

40 CFR Part 180

Endosulfan; Pesticide Tolerance

AGENCY: Environmental Protection Agency (EPA).

ACTION: Order reestablishing tolerance.

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SUMMARY: EPA has granted an objection to the timing of the revocation 
of the tolerance for endosulfan on tea. The objection was filed by the 
Chamber of

[[Page 8408]]

Commerce of Zhejiang International Tea Industry. With this document, 
EPA is amending the tolerances for endosulfan to reestablish a time-
limited tolerance for residues on tea.

DATES: This document is effective February 6, 2013.

ADDRESSES: The docket for this action, identified by docket 
identification (ID) number EPA-HQ-OPP-2011-0104, is available at http://www.regulations.gov or at the Office of Pesticide Programs Regulatory 
Public Docket (OPP Docket) in the Environmental Protection Agency 
Docket Center (EPA/DC), EPA West Bldg., Rm. 3334, 1301 Constitution 
Ave. NW., Washington, DC 20460-0001. The Public Reading Room is open 
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal 
holidays. The telephone number for the Public Reading Room is (202) 
566-1744, and the telephone number for the OPP Docket is (703) 305-
5805. Please review the visitor instructions and additional information 
about the docket available at http://www.epa.gov/dockets.

FOR FURTHER INFORMATION CONTACT: Andrea Mojica, Pesticide Reevaluation 
Division (7508P), Office of Pesticide Programs, Environmental 
Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-
0001; telephone number: (703) 308-0122; fax number: (703) 308-8005; 
email address: mojica.andrea@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

    In this document EPA grants an objection by the Chamber of Commerce 
of Zhejiang International Tea Industry to the timing of a revocation 
action concerning the endosulfan tolerance on tea. This action may also 
be of interest to agricultural producers, food manufacturers, or 
pesticide manufacturers. The following list of North American 
Industrial Classification System (NAICS) codes is not intended to be 
exhaustive, but rather provides a guide to help readers determine 
whether this document applies to them. Potentially affected entities 
may include:
     Crop Production (NAICS code 111).
     Animal Production (NAICS code 112).
     Food Manufacturing (NAICS code 311).
     Pesticide Manufacturing (NAICS code 32532).

B. How can I get copies of this document and other related information?

    The docket for this action, identified by docket identification 
(ID) number EPA-HQ-OPP-2011-0104, is available at http://www.regulations.gov or at the Office of Pesticide Programs Regulatory 
Public Docket (OPP Docket) in the Environmental Protection Agency 
Docket Center (EPA/DC), EPA West Bldg., Rm. 3334, 1301 Constitution 
Ave. NW., Washington, DC 20460-0001. The Public Reading Room is open 
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal 
holidays. The telephone number for the Public Reading Room is (202) 
566-1744, and the telephone number for the OPP Docket is (703) 305-
5805. Please review the visitor instructions and additional information 
about the docket available at http://www.epa.gov/dockets. The 
electronic version of EPA's tolerance regulations in 40 CFR part 180 
are available through the Government Printing Office's e-CFR site at 
http://www.gpoaccess.gov/ecfr.

II. Response to Objection

A. What action is the Agency taking?

    In this order, EPA grants the objection of the Chamber of Commerce 
of Zhejiang International Tea Industry (``Zhejiang Chamber of 
Commerce'') to the immediate revocation of the tolerance. On May 4, 
2011, EPA proposed to revoke all tolerances for endosulfan (76 FR 
25281) (FRL-8870-4). Many of the tolerances were not proposed to be 
revoked immediately but had proposed revocation dates from 1 to 5 years 
in the future to allow phase-out of endosulfan. However, as to the tea 
tolerance, EPA proposed immediate revocation based upon the fact that 
``[t]here are no active registrations for use of endosulfan in the 
United States for growing tea and there may never have been one.'' EPA 
concluded that ``these tolerances are no longer needed and should be 
revoked.'' EPA received no comments on proposed revocation of the tea 
tolerance and accordingly, the tolerance was revoked on September 14, 
2011 (76 FR 56648) (FRL-8883-9).
    The Zhejiang Chamber of Commerce filed a timely objection to EPA's 
action noting that endosulfan has been used in China tea production. 
While the Zhejiang Chamber of Commerce agrees with the phase out of 
endosulfan, it asserts that for tea, similar to other crops, additional 
time is needed to transition to an alternative to endosulfan. The 
Zhejiang Chamber of Commerce seeks a phase out period not to exceed 5 
years. Finally, the Zhejiang Chamber of Commerce indicates that it did 
not comment on the proposed rule because EPA failed to follow 
established procedures for providing notice of such proposed actions 
under the World Trade Organization (WTO). The Zhejiang Chamber of 
Commerce objection can be found in docket number EPA-HQ-OPP-2011-0104 
at http://www.regulations.gov.
    After having reviewed this objection, EPA finds that it erred in 
basing its immediate revocation of the tea tolerance on the fact that 
there are no registrations for use of endosulfan on tea in the United 
States. Tea is not widely grown in the United States and the tea 
tolerance served as an ``import'' tolerance to allow importation of tea 
grown in foreign counties to the United States. However, EPA believes 
that revocation, albeit on a different timeframe, is still appropriate 
because the objector has indicated that China intends to phase out use 
of endosulfan on tea.
    Accordingly, consistent with the phase out of tolerances for 
pineapple, strawberry, animal ear tag and vegetables grown for seed 
uses, EPA is granting the objection and re-instating the tea tolerance 
with an expiration date of July 31, 2016. This date, which is 
consistent with the objections, allows time for phase out of endosulfan 
and transition to alternatives as well as for treated commodities to 
clear the channels of trade. Although EPA would not normally consider 
an objection that could have been, but was not, filed as a comment, EPA 
believes an exception is appropriate here given EPA's failure to 
provide proper notice of the proposed revocation under WTO procedures 
to the foreign community.
    The granting of this objection is in response to an objection 
calling to EPA's attention an error in the basis for the original 
action to revoke the tea tolerance. Granting the objection does not 
indicate that EPA has re-examined the endosulfan tea tolerance and 
found it to be in accord with the statutory standards of the Federal 
Food, Drug and Cosmetic Act (FFDCA) section 408. EPA may in the future 
initiate revocation proceedings as to this tolerance on other grounds.

B. What is the Agency's authority for taking this action?

    Final rules issued under section 408(d)(4)(i) are subject to a 
statutorily-created administrative review process (21 U.S.C. 
346a(g)(2)). Any person may file objections to a section 408(d)(4)(iii) 
order with EPA and request a hearing on those objections. EPA is 
required by section 408(g)(2)(C) to issue a final order resolving the 
objections to the section 408(d)(4)(iii) order (21 U.S.C. 
346a(g)(2)(C)).

[[Page 8409]]

III. Regulatory Assessment Requirements

    This action announces the Agency's final order regarding objections 
filed under section 408 of FFDCA. As such, this action is an 
adjudication and not a rule. Under the Administrative Procedures Act 
(APA), orders are expressly excluded from the definition of a rule. (5 
U.S.C. 551(4)). The regulatory assessment requirements imposed on 
rulemaking do not, therefore, apply to this action.

A. Executive Order 12866 and Executive Order 13563

    Because this order is not a ``regulatory action'' as that term is 
defined in Executive Order 12866 entitled ``Regulatory Planning and 
Review'' (58 FR 51735, October 4, 1993), this action is not subject to 
review by the Office of Management and Budget (OMB) under Executive 
Orders 12866 and 13563 entitled ``Improving Regulation and Regulatory 
Review'' (76 FR 3821, January 21, 2011).

B. Paperwork Reduction Act

    This action does not contain any information collections subject to 
OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et 
seq.

C. Regulatory Flexibility Act

    Since this order is not a rule under the APA (5 U.S.C. 551(4)), and 
does not require the issuance of a proposed rule, the requirements of 
the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.) do not 
apply.

D. Unfunded Mandates Reform Act; and Executive Orders 13132, and 13175

    This order directly regulates growers, food processors, food 
handlers and food retailers, not States or tribes; nor does this action 
alter the relationships or distribution of power and responsibilities 
established by Congress in the preemption provisions of section 
408(n)(4) of FFDCA. As such, the Agency has determined that this action 
will not have a substantial direct effect on States or tribal 
governments, on the relationship between the national government and 
the States or tribal governments, or on the distribution of power and 
responsibilities among the various levels of government or between the 
Federal Government and Indian tribes. Thus, the Agency has determined 
that Executive Order 13132 entitled ``Federalism'' (64 FR 43255, August 
10, 1999) and Executive Order 13175 entitled ``Consultation and 
Coordination with Indian Tribal Governments'' (65 FR 67249, November 9, 
2000) do not apply to this order. In addition, this order does not 
impose any enforceable duty or contain any unfunded mandate as 
described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 
U.S.C. 1531-1538).

E. Executive Orders 13045, 13211 and 12898

    As indicated previously, this action is not a ``regulatory action'' 
as defined by Executive Order 12866. As a result, this action is not 
subject to Executive Order 13045, entitled ``Protection of Children 
from Environmental Health Risks and Safety Risks'', (62 FR 19885, April 
23, 1997) and Executive Order 13211 entitled ``Actions Concerning 
Regulations That Significantly Affect Energy Supply, Distribution, or 
Use'', (66 FR 28355, May 22, 2001). In addition, this order also does 
not require any special considerations under Executive Order 12898 
entitled ``Federal Actions to Address Environmental Justice in Minority 
Populations and Low-Income Populations'' (59 FR 7629, February 16, 
1994).

F. National Technology Transfer and Advancement Act

    This action does not involve any technical standards that would 
require Agency consideration of voluntary consensus standards pursuant 
to section 12(d) of the National Technology Transfer and Advancement 
Act (NTTAA), (15 U.S.C. 272 note).

IV. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq. does not apply 
because this action is not a rule as that term is defined in 5 U.S.C. 
804(3).

List of Subjects in 40 CFR Part 180

    Environmental protection, Administrative practice and procedure, 
Agricultural commodities, Pesticides and pests, Reporting and 
recordkeeping requirements.

    Dated: January 24, 2013.
Steven Bradbury,
Director, Office of Pesticide Programs.

    Therefore, 40 CFR chapter I is amended as follows:

PART 180--[AMENDED]

0
1. The authority citation for part 180 continues to read as follows:

    Authority: 21 U.S.C. 321(q), 346a and 371.

0
2. Section 180.182 is amended as follows:
0
i. Redesignate paragraph (a) introductory text and the table as 
paragraph (a)(1); and
0
ii. Add paragraph (a)(2).
    The addition reads as follows:

Sec.  180.182  Endosulfan; tolerances for residues.

    (a) * * *
    (2) A tolerance is established for the combined residues of the 
insecticide endosulfan, 6,7,8,9,10,10-hexachloro-1,5,5a,6,9,9a-
hexahydro-6,9-methano-2, 4,3-benzodioxathiepin-3-oxide (alpha and beta 
isomers), and its metabolite endosulfan sulfate, 6,7,8,9,10,10-
hexachloro-1,5,5a,6,9,9a-hexahydro-6,9-methano-2, 4,3-
benzodioxathiepin-3,3-dioxide in or on the commodity in the following 
table:

------------------------------------------------------------------------
                                                            Expiration/
            Commodity                Parts per million      revocation
                                                               date
------------------------------------------------------------------------
Tea, dried.......................  24 (reflecting less           7/31/16
                                    than 0.1 ppm in
                                    beverage tea)
                                    resulting from
                                    application of the
                                    insecticide to
                                    growing tea.
------------------------------------------------------------------------

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[FR Doc. 2013-02392 Filed 2-5-13; 8:45 am]
BILLING CODE 6560-50-P
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